Court Rules President Violated Constitution

January 26, 2013

WASHINGTON (AP) - President Barack Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board, a federal appeals court ruled Friday in a far-reaching decision that could severely limit a chief executive's powers to make recess appointments.

The decision of the U.S. Court of Appeals for the D.C. Circuit marked a victory for Republicans and business groups critical of the labor board. If it stands, it could invalidate hundreds of board decisions over the past year, including some that make it easier for unions to organize.

When Obama filled the vacancies on Jan. 4, 2012, Congress was on an extended holiday break. But GOP lawmakers gaveled in for a few minutes every three days just to prevent Obama from making recess appointments. The White House argued that the pro forma sessions - some lasting less than a minute - were a sham.

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AP PhotoPresident Barack Obama announces Thursday that he will re-nominate Richard Cordray to lead the Consumer Financial Protection Bureau.

The court rejected that argument, but went even further, finding that under the Constitution, a recess occurs only during the breaks between formal year-long sessions of Congress, not just any informal break when lawmakers leave town. It also held that presidents can bypass the Senate only when administration vacancies occur during a recess.

White House press secretary Jay Carney said the administration strongly disagrees with the decision and that the labor board would continue to conduct business as usual, despite calls for the board members to resign.

"The decision is novel and unprecedented," Carney said. "It contradicts 150 years of practice by Democratic and Republican administrations."

Under the court's decision, 285 recess appointments made by presidents between 1867 and 2004 would be invalid.

The Justice Department hinted that the administration would ask the Supreme Court to overturn the decision. "We disagree with the court's ruling and believe that the president's recess appointments are constitutionally sound," the statement said.

The court acknowledged that the ruling conflicts with what some other federal appeals courts have held about when recess appointments are valid, which only added to the likelihood of an appeal to the high court.

The ruling also threw into question the legitimacy of Obama's recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray's appointment, made on the same date, has been challenged in a separate case.

Carney insisted the court's ruling affects only a single case before the labor board and would have no bearing on Cordray's appointment. Obama on Thursday renominated Cordray for the job.

The case challenging the recess appointments was brought by Noel Canning, a Washington state bottling company that claimed an NLRB decision against it was not valid because the board members were not properly appointed. The D.C. Circuit panel agreed.

Obama made the appointments after Senate Republicans blocked his choices for an agency they contended was biased in favor of unions. Obama claims he acted properly because the Senate was away for the holidays on a 20-day recess. The Constitution allows for such appointments without Senate approval when Congress is in recess.

But during that time, GOP lawmakers argued, the Senate technically had stayed in session because it was gaveled in and out every few days for pro forma sessions.

GOP lawmakers used the tactic - as Democrats had done in the past - specifically to prevent the president from using his recess power to install members to the labor board and the consumer board. They had also vigorously opposed the nomination of Cordray.

If the ruling stands, it would invalidate more than 600 board decisions issued over the past year. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down.